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IN THE UNITED STATES DISTRICT COURT

IN THE WESTERN DISTRICT OF NORTH CAROLINA


ASHEVILLE DIVISION
CIVIL ACTION NO. 1:19 CV 182

RAB BUILDERS LLC; )


)
Plaintiff, )
)
vs. )
) DEFENDANTS’ MEMORANDUM OF
BUNCOMBE COUNTY, a North Carolina ) LAW IN SUPPORT OF THEIR MOTION
county and body public, and ) TO DISMISS
BUNCOMBE COUNTY BOARD OF )
ADJUSTMENT, )
)
Defendants. )

Defendants Buncombe County (the “County”) and the Buncombe County Board of

Adjustment (the “BOA”) (collectively, “Defendants”), by and through counsel and pursuant to

Local Civil Rule 7.1(c) W.D.N.C., submit this Memorandum of Law in support of their Motion

to Dismiss (DE #2).

STATEMENT OF THE CASE AND FACTUAL BACKGROUND

1. This action arises from the BOA denial of Plaintiff RAB Builders, LLC’s (“RAB

Builders”) request for a conditional use permit (the “CUP”) to construct an apartment complex.

2. At some point, according to the Complaint, “Plaintiff [RAB Builders] acquired a

contract with Linmar Properties, LLC to purchase two parcels of land located at 423 Moffitt

Road within Buncombe County . . . .” (the “Site”) for potential development. (DE #1-1 at ¶ 4

(emphasis added)). It is not clear from the Complaint from whom or when Plaintiff allegedly

acquired this contract.

3. On or about March 12, 2018, RAB Builders allegedly submitted an application to the

BOA for a CUP. (DE #1-1 at ¶ 8). (DE #1-1, p. 105-115 (Ex. B to Compl. (application)).

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4. Also on March 12, 2018, “RAB Builders, LLC / Michael Posey” allegedly applied for a

zoning vested right and certified: “I am the owner, contractor, or authorized agent of the owner .

. . .” (DE #1-1, p 114-15).

5. The public hearing before the BOA on the CUP application took place on April 11, 2018.

(DE #1-1 at ¶ 22). The permit was opposed and testimony was presented in opposition to

issuance of the permit. (DE #1-1 at ¶ 27).

6. The BOA denied the application at the close of the hearing. (DE #1-1 p 6 at ¶ 33; DE

##1-1, p 116-18 (BOA Order (Ex. C. to Compl.)).

7. On June 7, 2018, RAB Builders filed a Petition for Writ of Certiorari contesting the

BOA’s order (“Lawsuit #1”). (DE #2-1; see DE #1-1, p. 119).

8. On September 6, 2018, following a hearing, the Honorable Superior Court Judge Marvin

P. Pope, Jr. entered an Order affirming the BOA’s decision. (See DE #2-2; DE #2-4, p 3 at ¶ 11

(Fernandez Aff., infra)).

9. RAB Builders appealed that decision to the North Carolina Court of Appeals, which

appeal is pending at COA 19-204. (See DE #1-1 at ¶ 44; DE #2-3 (Docket Sheet from COA 19-

204)1; DE #2-4, p 2-3 at ¶ 7).

10. On May 8, 2019, the Developer filed the instant action, Lawsuit #2, alleging violation of

its constitutional rights and seeking damages under 42 U.S.C. § 1983. In this action, RAB

Builders does not claim it has an ownership interest in the Site, an option to purchase the Site, or

a pending application for a permit before the BOA.

11. This action was removed to this Court on June 7, 2019. (DE #1.)

STATEMENT OF ADDITIONAL FACTS AS TO STANDING BASED ON AFFIDAVIT


RECENTLY FILED BY RAB BUILDERS IN COA 19-204

1
The Record on Appeal, docket sheet and other pleadings in the Court of Appeals case are electronically available
at: https://www.ncappellatecourts.org/.

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12. On May 28, 2019, in the pending Court of Appeals proceeding, in its response to

Defendant’s Motion to Dismiss the appeal in Lawsuit #1 due to mootness, RAB Builders filed

the “Affidavit of Juan Fernandez,” the “Vice President of Operations of RAB Management,

LLC.” (DE #2-4, p 2 at ¶ 2 (Fernandez Aff.)).

13. RAB Management is not a party to this litigation or Lawsuit #1. There are no facts

alleged that RAB Management assigned its contract or rights thereunder to RAB Builders.

14. In Mr. Fernandez’ Affidavit, he refers to RAB Management as “RAB.” Therefore, the

following sworn statements from Mr. Fernandez’ Affidavit refer to the actions of RAB

Management (not RAB Builders):

a. Prior to March 12, 2018, Mr. Fernandez testifies that RAB Management “possessed a

contract to purchase and develop” the Site from Linmar Properties, LLC. (DE #2-4 p 2 at

¶ 3 (Fernandez Aff.) (emphasis added)).

b. RAB Management’s purchase price was $900,000 and closing was to occur around May

30, 2018 or within 30 days after the due diligence period had expired. (Id. at ¶ 4).

c. Mr. Fernandez swears that RAB Management’s funding for the project from a Florida-

based bank was contingent upon receipt of a CUP. (Id. at ¶ 6).

d. RAB Management “lost its financing for the Project, [resulting] in the lost opportunity to

complete the purchase of the Site.” (Id., p 3 at ¶ 11).

15. By October 30, 2018, a company other than RAB Management purchased the Subject

Property. (Id. at ¶ 13).

16. Mr. Fernandez does not state RAB Management claims an ownership interest in the Site,

holds option to purchase the Site, or has any permit applications pending before the BOA.

I. STANDARD OF REVIEW

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Because standing is an element of subject matter jurisdiction, a motion to dismiss for lack

of standing is properly analyzed under Fed.R.Civ.P. 12(b)(1). See Pitt County v. Hotels.com,

L.P., 553 F.3d 308, 311 (4th Cir. 2009). In ruling on a motion to dismiss under Rule 12(b)(1), the

Court may consider evidence outside the pleadings without converting a defendant's motion to

one for summary judgment. See White Tail Park, Inc. v. Stroube, 413 F.3d 451, 459 (4th

Cir.2005); Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768

(4th Cir. 1991). The Plaintiff bears the burden of proving that subject matter jurisdiction exists.

United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347-48 (4th Cir. 2009).

A Rule 12(b)(6) motion tests the "legal sufficiency of the complaint" but does not resolve

contests surrounding the facts or the merits of a claim. Republican Party of N.C. v. Martin, 980

F.2d 943, 952 (4th Cir. 1992); Eastern Shore Markets, Inc. v. J.D. Assoc. Ltd. Partnership, 213

F.3d 175, 180 (4th Cir. 2000). A complaint attacked by Rule 12(b)(6) will survive if it contains

enough facts to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

"Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice." Id. Further, when considering a motion to dismiss, a court need not

accept a complaint’s legal conclusions nor accept as true a plaintiff’s “unwarranted inferences,

unreasonable conclusions, or arguments.” Iqbal, 556 U.S. at 678-79; Nemet Chevrolet Ltd. v.

Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009); Eastern Shore Mkts. v. J.D.

Assocs. Ltd., 213 F.3d 175, 180 (4th Cir. 2000). A complaint must allege “more than a sheer

possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.

In reviewing a Motion to Dismiss pursuant to Rule 12(b)(6), the Court may consider

official public records and documents central to plaintiff's claim without converting the motion

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into one for summary judgment so long as the authenticity of these documents is not disputed.

Witthohn v. Fed. Ins. Co., 164 Fed. App'x 395, 396–97 (4th Cir. 2006); Kerr v. Marshall Univ.

Bd. of Governors, 824 F.3d 62, 68, n.1 (4th Cir. 2016) (referring to student handbook to provide

context to graduate student’s due process and discrimination claims).

ARGUMENT

I. PLAINTIFF LACKS STANDING AND HAS NOT ALLEGED A COGNIZABLE


PROPERTY INTEREST.

For the reasons set forth below, RAB Builders fails to plausibly allege standing in its

Complaint under both the North Carolina prudential standing principles2 and Article III because

it has no injury in fact. For related reasons, Plaintiff has not plausibly alleged it has a cognizable

property interest necessary to support each of its claims. Therefore, its Complaint should be

dismissed pursuant to Rules 12(b)(1) and (6).

RAB Builders’ Complaint alleges the following in regards to standing:

45. . . Plaintiff has standing to bring this action as result of being the applicant
before the decision-making board whose decision is being appealed and as a result
of suffering damages as a direct consequence of the unlawful CUP denial.
***
49. As a direct result of Defendants' wrongful actions, RAB incurred, and is
continuing to incur, substantial expenditures well in excess of $10,000.00 in
defending its rights through the Permit Appeal Case, including, but not limited to,
consultant fees and attorney's fees.
50. As a direct result of Defendants' wrongful actions, RAB has suffered
substantial damages, including, but not limited to, (i) out-of-pocket expenses; (ii)
losing its profits which would have been reasonably gained from said Project and;
(iii) lost opportunities to sell the Site for a substantial profit.
51. Plaintiff has a protected interest in the CUP… the Project complied with the
Zoning Ordinance and the outcome ... was clear and mandated ...
DE #1-1 at p 8.

2
See Neuse River Found., Inc. v. Smithfield Foods, Inc., 155 N.C. App. 110, 114, 574 S.E.2d 48, 52 (2002)
(affirming dismissal pursuant to N.C.R.C.P. 12(b)(1) and (6)) (explaining North Carolina case law concept of
prudential standing is not constrained by the “case or controversy” requirement of Article III of the U.S.
Constitution; it refers generally to a party's right to have a court decide the merits of a dispute and “most often turns
on whether the party has alleged ‘injury in fact’ in light of the applicable statutes or caselaw”) (internal citations
omitted).

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The doctrine of standing is intended “to ensure that the plaintiff has a sufficient personal

stake in the outcome of a dispute to render judicial resolution of it appropriate . . .” Friends for

Ferrell Parkway, LLC v. Stasko, 282 F.3d 315, 319 (4th Cir. 2002). If a plaintiff cannot show

standing, the Complaint should be dismissed pursuant to Rules 12(b)(1) and (b)(6). Painter's

Mill Grille, LLC v. Brown, 716 F.3d 342, 347–49 (4th Cir. 2013) (affirming dismissal pursuant

to 12(b)(6) where principals of limited liability company did not have standing to bring claims

against landlord); CGM, LLC v. BellSouth Telecommunications, Inc., 664 F.3d 46, 52 (4th Cir.

2011) (dismissal based on lack of statutory standing pursuant to 12(b)(6)).

The question of standing “is a threshold issue that must be addressed, and found to exist,

before the merits of the case are judicially resolved.” Byron v. Synco Properties, Inc., 813 S.E.2d

455, 458 (N.C. App.), review denied, 817 S.E.2d 199 (N.C. 2018) (internal citation and quotation

marks omitted). It requires Plaintiff demonstrate that: (1) an injury in fact; (2) that the injury

suffered is “fairly traceable” to defendant’s challenged actions; and (3) that it is likely, rather

than just speculative, that the plaintiff's alleged injury will be redressed by a favorable decision

by the Court. Luhan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). To establish injury

in fact, the plaintiff must have “suffer[ed] an invasion of a legally protected interest which is

concrete and particularized, as well as actual or imminent.” Friends of the Earth, Inc. v. Gaston

Copper Recycling Corp., 204 F.3d 149, 154 (4th Cir. 2000) (emphasis added).

In the context of a procedural or substantive due process claim, the Plaintiff must first

show it possessed a property interest “that is cognizable under the Fourteenth Amendment's Due

Process Clause.” Gardner v. City of Baltimore Mayor & City Council, 969 F.2d 63, 68–69 (4th

Cir. 1992) (internal citations omitted); Elhady v. Piehota, 303 F.Supp.3d 453, 462 (E.D.Va. Sept.

5, 2017) (procedural due process context). “If there is no cognizable property interest, there is no

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need to reach the question of whether a purported deprivation was arbitrary or capricious.”

Gardner, 969 F.2d at 68–69 (internal citations omitted). The Fourteenth Amendment itself does

not create property interests. “Rather, they are created and their dimensions are defined by

existing rules or understandings that stem from an independent source such as state law . . .”

Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709 (1972).

RAB Builders fails to state a claim for relief and fails to demonstrate standing to pursue

the subject lawsuit because it does not plausibly allege a cognizable property interest or injury.

A. RAB Management, LLC, is not a party to this lawsuit.

According to Mr. Fernandez’ affidavit3, the entity that “possessed a contract to purchase”

the Site, intended to develop the Site, filed the application for the CUP permit, and spent funds to

develop the Site was non-party RAB Management, LLC, not RAB Builders, LLC. (DE #2-4, p 2

at ¶¶ 3, 5, 7). Mr. Fernandez’ statements are at odds with those in the subject Complaint that

RAB Builders submitted the application and incurred out of pocket expenses to develop the Site.

(DE #1 at p 2 at ¶ 8, p 8 at ¶ 50). They cast doubt on RAB Builders’ standing in addition to the

reasons set forth below. If it was RAB Management, rather than RAB Builders, who was

allegedly injured by Defendants’ actions, then the standing inquiry stops here and the Complaint

should be dismissed.

Even if the Court were to ignore the Affidavit, RAB Builders lacks standing and fails to

state a claim for the reasons set forth below.

3
Because there is a dispute whether Plaintiff has standing to bring these claims, it is proper for the Court to consider
the statements outlined above from Mr. Fernandez’ Affidavit. See, e.g., Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct.
2197, 45 L.Ed.2d 343 (1975) (holding district court may allow or require plaintiff to supply, by amendment to the
complaint or affidavits, further particularized allegations of fact deemed supportive of plaintiff's standing); Massey
v. Ojaniit, 759 F.3d 343, 352–53 (4th Cir. 2014) (concluding district court's consideration of trial transcript in prior
proceeding appropriate) (motion for judgment on the pleadings); Hall v. Virginia, 385 F.3d 421, 424 n.3 (4th Cir.
2004) (observing that a court does not convert a motion to dismiss to a motion for summary judgment when it takes
judicial notice of public records); Pharm. Research & Mfrs. of Am. v. U.S. Dep't of Health & Human Servs., 43 F.
Supp. 3d 28, 33 (D.D.C. 2014) (collecting cases taking judicial notice of information posted on official public
websites of government agencies).

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B. RAB Builders lacks standing because it no longer has an option to purchase
the subject property.

Because Plaintiff has an undisputed status as a mere prospective purchaser of land owned

by another, it cannot demonstrate standing or plausibly state a claim.

The subject ordinance provides that “[a] zoning vested right is not a personal right, but

shall attach to and run with the applicable property.” Sec. 75-622(b)(6). Such vested rights

extend to successors to the original landowner “[a]fter approval of a site specific development

plan.” Id. See also N.C. Gen. Stat. Ann. § 153A-344.1(f)(1).

North Carolina case law holds that a prospective purchaser has standing to participate in

the review of zoning decisions when the purchaser is “bound to purchase [the property] if the

special use permit it seeks [is] granted.” Humble Oil & Ref. Co. v. Bd. of Aldermen of Town of

Chapel Hill, 284 N.C. 458, 464–65, 202 S.E.2d 129, 133–34 (1974). On the other hand, a mere

option holder who had the right to elect, within a stipulated period, to buy or not to buy, does not

have standing to challenge a quasi-judicial decision of the BOA. See Lee v. Bd. of Adjustment

of City of Rocky Mount, 226 N.C. 107, 110, 37 S.E.2d 128, 131 (1946). Such a prospective

purchaser “cannot be hurt or suffer any hardship whichever way the case goes.” Id. See also

Wil-Hol Corp. v. Marshall, 71 N.C. App. 611, 613–14, 322 S.E.2d 655, 657 (1984) (barring

zoning challenge of a month-to-month tenant whose challenge was initiated after the leasehold

was terminated) (affirming dismissal for failure to state a claim).

The New Hampshire Supreme Court analyzed standing in a similar procedural posture in

Joyce v. Town of Weare, 156 N.H. 526, 529–32, 937 A.2d 919, 923-25 (2007). There, the

developer entered into a purchase agreement to buy the seller’s land for a proposed subdivision.

Before the developer submitted an application for the subdivision, a one year building

moratorium was set. The developer and seller challenged the constitutionality of the

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moratorium. While that action was pending, the purchase agreement expired. The seller

dismissed its claims. The town moved to dismiss the developer’s remaining claims based on

lack of standing. The court agreed that, while the agreement was still in place, the developer had

standing to pursue these claims. However, once that agreement terminated, so did the

developer’s standing. Id.

Here, Plaintiff’s Complaint does not allege RAB Builders had an obligation to purchase

the property if the CUP permit had been issued. On the contrary, Mr. Fernandez states that the

“opportunity” to purchase the Site was lost because RAB Management was unable to timely

secure financing for the project from a Florida bank while the permit appeal was pending. (DE

#2-4 at ¶¶ 6, 11). Any interest was lost before this lawsuit was filed. In any event, it is

undisputed that RAB Builders is not even a prospective purchaser at this point. The CUP was

denied before the due diligence period to purchase the Site expired, between September 6, 2018

and October 31, 2018. (DE #2-4, p 3-4 at ¶¶ 10-13). By October 20, 2018, the property was

sold to a third party, Mountain Commercial Property Co., LLC, who is not a party to this

litigation or to Lawsuit #1. (DE #2-4, p 4 at ¶ 13). Plaintiff does not allege it is successor to or

in privity with any of the Site owners, past or present. Plaintiff does not allege an equitable

interest in the Site nor does Plaintiff allege any permit application for the Site is pending.

Therefore, Plaintiff has not plausibly alleged an injury in fact or established standing.

C. RAB Builders does not have a claim of entitlement.

To establish a § 1983 claim based on a violation of substantive due process, the plaintiffs

must first show that they had a property interest that was deprived by the violation. Sunrise Corp.

of Myrtle Beach v. City of Myrtle Beach, 420 F.3d 322, 328 (4th Cir.2005); Sylvia Dev. Corp.,

48 F.3d at 827; McDonald's Corp. v. Dwyer, 450 S.E.2d 888, 890 (N.C.1994). “To demonstrate

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a property interest under the Fourteenth Amendment, a party must show more than a mere

expectation; he must have a legitimate claim of entitlement.” Board of Regents v. Roth, 408

U.S. 564, 577, 92 S.Ct. 2701, 2709 (1972); Dwyer, 450 S.E.2d at 890. Entitlements subject to

due process protections are not created by the Fourteenth Amendment, but arise from and are

defined by independent sources, including state law. Pulte Home Corp. v. Montgomery Cty.,

Maryland, 909 F.3d 685, 692 (4th Cir. 2018) (internal citations omitted). Plaintiff’s Complaint

does not plausibly allege a claim of entitlement for two related reasons discussed below.

1. RAB Builders does not have a claim of entitlement because the BOA had
discretion to deny the CUP application.

Where the local zoning board retains discretion to deny a permit, there is no claim of

entitlement. As the Fourth Circuit explained in Gardner, 969 F.2d at 68, in the context of

municipal land-use decisions:

[W]hether a property-holder possesses a legitimate claim of entitlement to a


permit or approval turns on whether, under state and municipal law, the local
agency lacks all discretion to deny issuance of the permit or to withhold its
approval. Any significant discretion conferred upon the local agency defeats the
claim of a property interest . . . Under this standard, a cognizable property interest
exists only when the discretion of the issuing agency is so narrowly circumscribed
that approval of a proper application is virtually assured . . . Even if in a particular
case, objective observers would estimate that the probability of issuance was
extremely high, the opportunity of the local agency to deny issuance suffices to
defeat the existence of a federally protected property interest.

Id. (internal quotations and citations omitted).

Zoning “is an inherently discretionary system.” Siena Corp. v. Mayor & City Council of

Rockville Maryland, 873 F.3d 456, 462-63 (4th Cir. 2017) (citing Gardner, 969 F.2d at 67; AT &

T Wireless PCS, Inc. v. Winston–Salem Zoning Bd. of Adjustment, 172 F.3d 307, 316 (4th Cir.

1999); Sylvia Dev. Corp., 48 F.3d at 828)). “The system is both practical and particularized. The

decisions of land use planners depend on the particular plans that are submitted and the particular

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areas that are affected. The latitude these planners have to resolve these particularized proposals

is integral to a state’s utilization of its police powers.” Id.

The Courts in this Circuit have found such discretion existing in numerous cases. Gardner

v. City of Baltimore Mayor & City Council, 969 F.2d 63, 64 (4th Cir. 1992); Siena Corp., 873

F.3d at 461–62; Raynor v. Town of Chapel Hill, No. 1:18CV291, 2019 WL 503443, at *6

(M.D.N.C. Feb. 8, 2019) (dismissing § 1983 claims based on town’s failure to issue certificate of

appropriateness with respect to the construction of a residence in a historical district where

commission had “considerable discretion” in issuing such certificates based on, inter alia, the

historical and/or architectural significance of the structure, the exterior form, and appearance of

any proposed additions or modifications to that structure, and finding whether the application is

or is not congruous with the historic aspects of the historic district).

Here, Plaintiff does not allege a claim of entitlement or lack of discretion by the BOA.

On the contrary, Plaintiff’s Complaint alleges:

 The ordinance “provides unguided discretion to the BOA to reject a conditional use

application . . .” (DE #1-1, p 7 at ¶ 38);

 Defendants’ actions were “an abuse of discretion” (id., p 8 at ¶ 48); and

 “[T]he BOA’s discretionary decision in the case at hand is informed by policies developed by

Buncombe County . . . .” (id. at ¶ 57).

The Zoning Ordinance attached to the Complaint at DE #1-1, p 13-104, also gives

substantial discretion to the BOA in reviewing and approving PUD I applications:

 “The purpose of this article is to ensure orderly, attractive, and economically sound

development and to protect existing property values within Buncombe County.” Sec. 78-

578.

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 “In granting a [CUP], the [BOA] may designate such conditions in connection therewith as

will, in its opinion, ensure that the proposed use will conform to the requirements and

spirit of this article. . .” Sec. 78-677(g) (emphasis added).

 The BOA must be of the opinion that the proposed use “will not adversely affect the health

or safety of persons residing or working in the neighborhood of the proposed use” and the

proposed use “will not be detrimental to the public welfare or injurious to property or public

improvements in the neighborhood.” Sec. 78-677(g)(1)-(2).

 Sec. 78-678(b)(6), “Uses by right subject to special requirements and conditional use

standards,” provides in part that PUD level I may be located in the relevant districts as

conditional uses, subject to a finding by the board of adjustment that certain minimum

requirements are met. As to several of these, lot size and setbacks ((6)(b)(4)(a)), height

limitations ((6)(b)(4)(b)), and parking ((6)(b)(4)(7)), the ordinance repeatedly states that the

BOA “shall exercise ultimate discretion as to whether the total development plan does

comply with the spirit and intent of this section.” Id.; see also, Sec. 78-677(g) (7) (providing

BOA “ultimate discretion” to determine whether adequate buffering has been provided).

Based on the cited provisions, the BOA had significant discretion to determine whether,

in its opinion, the Plaintiff should obtain a CUP permit. Consequently, the Plaintiff has not

alleged a cognizable property interest under Gardner and the above cited cases.

2. RAB Builders has no vested rights.

Plaintiff claims its right to the CUP “should be considered vested in RAB from the

moment RAB Builders allegedly complied with the County Zoning Ordinance requirements and

submitted their application to the BOA.” (DE #1-1, p 8 at ¶ 51). Plaintiff’s claims premised on

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this notion of a protected property (a vested right)4 fail to state a claim and Plaintiff lacks

standing to assert a vested right.

North Carolina recognizes two methods for a landowner to establish a vested right in a

zoning ordinance: (1) qualify under the common law; or (2) qualify with relevant statutes.

Browning–Ferris Indus. of S. Atl., Inc. v. Guilford Cnty. Bd. of Adjustment, 484 S.E.2d 411, 414

(1997); see David W. Owens, Land Use Law in North Carolina, 191 (2d ed. 2011) (discussing

methods for establishing vested right). Plaintiff fails to allege either of these methods.

a. Plaintiff alleges no common law vested right.

A developer’s expenditures so that he may apply for a permit are not made in reliance on

the permit thereafter issued or denied. Warner v. W & O, Inc., 263 N.C. 37, 41, 138 S.E.2d 782,

785–86 (1964). As explained by the Court of Appeals:

The common law vested rights doctrine is rooted in the due process of law and the
law of the land clauses of the federal and state constitutions and has evolved as a
constitutional limitation on the state's exercise of its police power[s]. A party's
common law right to develop and/or construct vests when: (1) the party has made,
prior to the amendment of a zoning ordinance, expenditures or incurred
contractual obligations “substantial in amount, incidental to or as part of the
acquisition of the building site or the construction or equipment of the proposed
building,” (2) the obligations and/or expenditures are incurred in good faith, Id.;
(3) the obligations and/or expenditures were made in reasonable reliance on
and after the issuance of a valid building permit, if such permit is required,
authorizing the use requested by the party, Id. (requiring building permit); and (4)
the amended ordinance is a detriment to the party. . .

Browning-Ferris, 126 N.C. App. at 169–72, 484 S.E.2d at 413–14 (1997) (emphasis added)

(citations and quotations omitted). The landowner has the burden of establishing it has satisfied

the elements for common law vested rights. Id. at 172, 484 S.E.2d at 414.

4
Courts sometimes use the terms “property interests” and “vested interests” interchangeably, as observed by the
Fourth Circuit in Siena Corp. v. Mayor & City Council of Rockville Maryland, 873 F.3d 456, 461–62 (4th Cir.
2017) (explaining and giving examples of how the two terms are interchanged); see also Ganadera Indus., S.A. v.
Block, 727 F.2d 1156, 1160 (D.C. Cir. 1984) (concluding that a party had “no constitutionally-protected property
interest” because it had no “vested right” (internal quotations omitted).

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It has been repeatedly held that expenses incurred before the issuance of a necessary

building permit or after mere preliminary permits fail the third prong of this test. Browning, 126

N.C. App. at 415 (rejecting landowners claim of vested right to proceed with construction and

operation of station under preamended ordinance where landowner claimed to have expended

$582,000 in purchase and development of station, including engineering and design fees, in good

faith reliance on preamended ordinance, agency letter, and conditional approval of site

development plan but prior to issuance of necessary building permit); Pulte Home Corp. v.

Montgomery Cty., Maryland, 909 F.3d 685, 692 (4th Cir. 2018) (concluding that landowner had

no claim of entitlement where developer “had neither obtained a permit nor begun construction

at the time the Amendment was adopted” and state law did not create a constitutional right to

water or sewer service); Griffin v. Town of Unionville, NC, No. 3:05-CV-514RJC, 2008 WL

697634, at *8 (W.D.N.C. Mar. 11, 2008), aff'd, 338 F. App'x 320 (4th Cir. 2009) (dismissing

property owners’ constitutional due process and common law vested right claim because owners’

previously issued special use permit was only one of three authorizations needed for the project

and the others were not yet obtained).

Here, there is no dispute that Plaintiff’s proposed PUD I required issuance of a CUP by

the BOA. (See Doc. #1-1 at ¶¶ 7-8, 10, 24). However, no CUP permit was ever issued. The

BOA denied issuance of the CUP. (See Doc. #1-1, p. 6 at ¶ 33; Doc. #1-1, p 117). Thus,

Plaintiff has not (and cannot) allege its actions were made in reasonable reliance on and after the

issuance of a CUP, defeating any claim to a common law vested right to develop the Site and any

property interest derived therefrom.

The County Planner’s “recommendation” that the project complied with the Zoning

Ordinance requirements for a CUP, cited in DE #1-1 at p 5, ¶ 25, does not change the result.

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See, e.g., Browning-Ferris, 126 N.C. App. at 172, 484 S.E.2d at 414–15 (concluding that

expenditures made in reliance on a preliminary “conditional” approval, but before special use

permit was denied, did not give rise to vested rights); Wilson v. City of Mebane Bd. of

Adjustment, 212 N.C. App. 176, 182–83, 710 S.E.2d 403, 407–08 (2011) (rejecting developer’s

arguments that city’s assurances that buffer requirement would be waived, made prior to city’s

denial of the required permit, gave rise to vested right); MLC Auto., LLC v. Town of S. Pines,

207 N.C. App. 555, 566, 702 S.E.2d 68, 76 (2010) (noting that assurances short of a permit, such

as letter, are not enough).

b. Plaintiff alleges no statutory vested right.

In addition, Plaintiff cannot establish a vested right in the CUP under the relevant statutes

and zoning ordinances.

 N.C.G.S. § 153A-344.1(c) (applying to counties) (“A vested right shall be deemed

established with respect to any property upon the valid approval, or conditional approval, of

a site specific development plan or a phased development plan, following notice and public

hearing by the county with jurisdiction over the property”) (emphasis added)).

 Id. at (b)(6) (defining vested right as “the right to undertake and complete the development

and use of property under the terms and conditions of an approved site specific development

plan or an approved phased development plan”).

 Id. at (b)(5) (defining site specific development plan as including a conditional use permit).

 Buncombe County Zoning Ordinance, Sec. 78-622(b), “Statutory vested rights provisions,”

(providing that “[a] zoning vested right shall be deemed established upon the valid approval,

or conditional approval, by the board of adjustment of a site specific development plan,

following notice and public hearing”). (DE #1-1, p 39).

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As set forth above, Plaintiff has not plausibly alleged the requisite approval upon which

its constitutional and damages claims hinge. In fact, Plaintiff specifically requested a zoning

vested right of 5 years “be established upon approval of a site specific development plan.” Doc.

#1-1 p 114 (emphasis added). Thus, no vested right came into being.

II. COUNT 1 – ARBITRARY AND CAPRICIOUS, ABUSE OF DISCRETION –


FAILS TO STATE A CLAIM.

Court 1, “Arbitrary and Capricious, Abuse of Discretion,” fails to state a claim and / or is

subject to dismissal for lack of subject matter jurisdiction for three reasons. First, Count 1 is not

a recognized cause of action or constitutional claim. It appears to stem from the statutory

framework that allows North Carolina’s courts to review the decision of the BOA and determine

whether the decision was in violation of constitutional standards or arbitrary or capricious.

N.C.G.S. § 160A–388(b) (authorizing boards of adjustment to hear and decide, inter alia,

conditional use permits); N.C.G.S. § 160A-393 (k)(1)(a, f) (stating scope of review of Superior

Court review of decision-making board decision includes ensuring that the rights of the

petitioners have not been prejudiced because the decision-making body's decision was "[i]n

violation of constitutional provisions, including those protecting procedural due process rights”

or “arbitrary or capricious"). To the extent this is a claim at all, it may only be pursued as

allowed in the framework of § 160A-393.

Second, Count 1 must be dismissed based on the doctrine of claim-splitting. Plaintiff

previously made this claim against Defendant Buncombe County in its 2018 Petition for Writ of

Certiorai. (DE #2-1, p 9-10 “Count Two: Arbitrary and Capricious, Findings and Decision Not

Supported by Record;” p 10 at ¶ 57). Plaintiff has appealed the Superior Court’s rejection of

that basis for its Petition to the Court of Appeals. The rule against claim-splitting “prohibits a

plaintiff from prosecuting its case piecemeal and requires that all claims arising out of a single

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wrong be presented in one action.” Sensormatic Sec. Corp. v. Sensormatic Elecs. Corp., 273 F.

App'x 256, 265 (4th Cir. 2008) (per curiam) (unpublished) (quotation omitted). A court may

dismiss a second suit “if the claim involves the same parties and arises out of the same

transaction or series of transactions as the first claim.” Sensormatic Sec. Corp., 273 F. App'x at

265 (quotation omitted).

Third, Count 1, is at best, a substantive due process claim under a different name. To

make out an arbitrary and capricious substantive due process claim, a plaintiff must

demonstrate (1) that it had a property interest; (2) that the state deprived it of this interest; and (3)

that the state's action fell so far beyond the outer limits of legitimate governmental action that no

process could cure the deficiency. Acorn Land v. Balt. Cnty., 402 F. App'x 809, 817 (4th Cir.

2010) (citing Sylvia, 48 F.3d 810 (4th Cir. 1995)). For the reasons provided below concerning

the inadequacy of Plaintiff's substantive due process claim, Count 1 should also be dismissed.

III. COUNT 2’s PROCEDURAL DUE PROCESS FAILS TO STATE A CLAIM.

To state a claim for relief for a violation of procedural due process, Plaintiff must allege

"'(1) a cognizable liberty or property interest; (2) the deprivation of that interest by some form of

state action; and (3) that the procedures employed were constitutionally inadequate.'" Elhady,

303 F.Supp.3d at 462 (quoting Shirvinski v. U.S. Coast Guard, 673 F.3d 308, 314 (4th Cir.

2012). “If no life, liberty, or property interest within the meaning of the Constitution is in issue,

then there can be no deprivation of constitutional due process.” Id. (quotations omitted).

"Due process of law generally requires that a deprivation of property 'be preceded by

notice and opportunity for hearing appropriate to the nature of the case.'" Tri County Paving,

Inc. v. Ashe County, 281 F.3d 430, 436 (4th Cir. 2002) (quoting Mullane v. Cent. Hanover Bank

& Trust Co., 339 U.S. 306, 313 (1950)). "However, 'to determine whether a procedural due

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process violation has occurred, courts must consult the entire panoply of predeprivation and post

deprivation process provided by the state.'" Id. (quoting Fields v. Durham, 909 F.2d 94, 97 (4th

Cir.1990)). "The procedures due in zoning cases, and by analogy due in cases such as this one

involving regulation of land use . . . are not extensive." Id. For example, the Supreme Court

held in City of Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, (1976), "that a local

government could, consistent with the Due Process Clause, make zoning decisions through the

political process in a referendum with no hearings of any kind." Id.

Count 2 fails to state a claim for two reasons. First, for the reasons stated in Section I,

Plaintiff fails to allege a cognizable property interest. Plaintiff had no vested right in the CUP

and no ownership interest in the Site. Plaintiff never acquired a permit for the project. Plaintiff

does not allege it was bound to purchase the property if the permit were issued. Plaintiff merely

had a unilateral expectation that a permit would issue. The BOA also had significant discretion

to grant the CUP permit, which destroys any legitimate entitlement and, hence any cognizable

property interest. Second, Plaintiff fails to allege the procedures employed were constitutionally

inadequate. Therefore, Plaintiff’s procedural due process claim should be dismissed.

IV. COUNT 3’s SUBSTANTIVE DUE PROCESS FAILS TO STATE A CLAIM.

To make out a substantive due process claim, Plaintiff must “demonstrate (1) that they

had property or a property interest; (2) that the state deprived them of this property or property

interest; and (3) that the state's action falls so far beyond the outer limits of legitimate

governmental action that no process could cure the deficiency.” Sylvia Development Corp., 48

F.3d at 827. “State deprivation of a protected property interest violates substantive due process

only if it is ‘so arbitrary and irrational, so unjustified by any circumstance or governmental

interest, as to be literally incapable of avoidance by any pre-deprivation procedural protections or

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of adequate rectification by any post-deprivation state remedies.’” Siena Corp, 873 F.3d at 463–

64 (quoting Rucker v. Harford County, 946 F.2d 278, 281 (4th Cir. 1991). “The state action

must be ‘conscious shocking, in a constitutional sense.’” Id. (quoting Huggins v. Prince

George’s Cnty., 683 F.3d 525, 535 (4th Cir. 2012). “In the context of local zoning actions, the

local government’s ‘alleged purpose’ must lack ‘any conceivable rational relationship to the

exercise of the state’s traditional police power.’” Id. (quoting Sylvia Development Corp., 48

F.3d at 827).

Plaintiff's substantive due process claim fails to allege a cognizable property interest (see

Sections I and III). Plaintiff also fails to allege facts showing that the alleged executive conduct

shocks the conscious. At best, the challenged action is the denial of a permit based on grounds

provided in the County's zoning ordinance; this does not shock the conscious. Plaintiff has also

not alleged that Defendants' purpose lacked a rational relationship to the exercise of traditional

police powers. To the contrary, Plaintiff alleges it asked the Defendant to grant a CUP and the

Board declined for reasons provided in the ordinance.

V. COUNT 3 - VIOLATIONS OF ARTICLE I, § 1 AND 35 – FAILS TO STATE A


CLAIM.

Plaintiff’s Count 3 is for violations of the North Carolina Constitution Article I, §1 (the

equality and rights of persons) and Article I, §35 (recurrence to fundamental principles).

“‘[T]o assert a direct constitutional claim . . . a plaintiff must allege that no adequate state

remedy exists to provide relief for the injury.’” Edwards v. City of Concord, 827 F.Supp.2d 517,

521 (M.D.N.C. Dec. 7, 2011) (quoting Copper v. Denlinger, 363 N.C. 784, 788, 688 S.E.2d 426,

428 (2010)). “An adequate remedy is one that ‘provide[s] the possibility of relief under the

circumstances.’” Id. (quoting Craig v. New Hanover Cnty. Bd. of Educ., 363 N.C. 334, 340, 678

S.E.2d 351, 355 (2009)). “The North Carolina Supreme Court's definition of adequacy is

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twofold: (1) that the remedy addresses the alleged constitutional injury and (2) that the remedy

provides the plaintiff an opportunity to enter the courthouse doors.”

Taylor v. Wake Cty., 811 S.E.2d 648, 654 (N.C. App. Feb. 20, 2018) (internal quotation and

citations omitted). “[A] court ‘must bow to established claims and remedies where these provide

an alternative to the extraordinary exercise if its inherent constitutional power.’” Id. (quoting

Corum v. Univ. of North Carolina, 330 N.C. 761, 413 S.E.2d 276 (1992)).

Plaintiff does not allege that no adequate state remedy exists to provide relief for its

claimed injury. Additionally, Plaintiff does not allege that was barred from the courthouse doors

to challenge the BOA’s decision. Rather Plaintiff has explicitly pled the existence of a statutory

remedy (N.C.G.S. § 160A-393) that allows Plaintiff to appeal the Board’s decision to superior

court and then to North Carolina’s appellate courts; a process Plaintiff alleges it is currently

pursuing. (DE #1-1 at ¶ 44.) As a result, Plaintiff failed to plead facts to support the elements of

its direct constitutional claims, while simultaneously alleging facts that defeat those same claims.

Accordingly, Count 3 should be dismissed.

VI. COUNT 4 – EQUAL PROTECTION – FAILS TO STATE A CLAIM.

Plaintiff’s allegations do not plausibly allege a cognizable claim under the Equal

Protection Clause. In Count 4 of Plaintiff’s Complaint, RAB Builders alleges that:

67 . . . Defendants have administered their authority against Plaintiff in a


discriminatory fashion and with an unequal hand in that: (i) the BOA is
tasked with impartially applying the County Zoning Ordinance; (ii) the
BOA has approved CUPs for applicants that similarly complied with the
development plan mandates in of the County Zoning Ordinance . . . (iii) on
the record, the BOA made no determination of standing as to several
individuals who testified and were allowed to offer opinion testimony
outside of the permissible scope of the rules of a quasi-judicial hearing;
and (iv) the BOA weighed inappropriate factors and applied an arbitrary
and capricious standard in place of the clearly defined regulations and
considerations listed within the County Zoning Ordinance.

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68. . . Defendants' actions have been prompted by improper motives and
purposes.

(DE # 1-1 at ¶¶ 67, 68).

“To succeed on an equal protection claim, a plaintiff must first demonstrate that he has

been treated differently from others with whom he is similarly situated and that the unequal

treatment was the result of intentional or purposeful discrimination.” Williams v. Hansen, 326

F.3d 569, 576 (4th Cir. 2003) (internal quotation and citation omitted); Morrison v. Garraghty,

239 F.3d 648, 654 (4th Cir.2001). If a plaintiff has made this showing, a court considers whether

the “disparity in treatment can be justified under the requisite level of scrutiny.” Williams v.

Hansen, 326 F.3d 569, 576 (4th Cir. 2003). An equal protection claim under Article 1, § 19 of

the North Carolina Constitution is subject to the same analysis. State v. Fowler, 676 S.E.2d 523,

544 (NC. App. 2009); Richardson v. N.C. Dept. of Correction, 345 N.C. 128, 134, 478 S.E.2d

501, 505 (1996). Equal protection claims brought by a “class of one” are successful only “where

the plaintiff alleges that she has been intentionally treated differently from others similarly

situated and that there is no rational basis for the difference in treatment.” Village of

Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073 (2000) (per curiam).

Plaintiff’s class-of-one equal protection claim fails for three reasons. First, Plaintiff’s

Complaint does not allege there was no rational basis for the denial of the CUP permit. Under

the rational basis review, it is not sufficient for a plaintiff simply to show that the defendant's

actual motive was irrational; “rather he must negate ‘any reasonably conceivable state of facts

that could provide a rational basis for the classification.’” Kirby v. City of Elizabeth City, 388

F.3d 440, 447 (4th Cir. 2004). Giarratano v. Johnson, 521 F.3d 298 (4th Cir. 2008) (affirming

the dismissal of a complaint that failed to adequately allege the absence of a rational basis

supporting the plaintiff's disparate treatment); Good Hope Hosp., Inc. v. N. Carolina Dep't of

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Health & Human Servs., 174 N.C. App. 266, 275, 620 S.E.2d 873, 881 (2005) (affirming

dismissal where complaint failed to allege lack of rational basis); see also Ruttenberg v. Jones,

283 F. App'x 121, 131 (4th Cir. 2008) (unpublished).

Here, the Complaint fails to allege that the supposed disparate treatment RAB Builders

received lacked a rational basis. From the face of the Complaint, one can easily discern

“rationale” reasons for the BOA’s denial of the CUP permit. The proposed use (1) did not

comply with Sec. 78-677(g)’s requirement that it “not be detrimental to the public welfare or

injurious to property or public improvements in the neighborhood” and (2) would “change the

character of the surrounding area.” (DE #1-1 at page 6, ¶¶ 34-35; DE # 1-1, page 116-18).

Second, the Complaint fails to point out a similarly situated party who received different

treatment beyond bare conclusory allegation: unnamed “applicants” for permits for projects and

uses that are not described. LMSP, LLC v. Town of Boone, No. 516CV00056FDWDSC, 2017

WL 4354735, at *6 (W.D.N.C. Sept. 29, 2017) (dismissing equal protection claim under Rule

12(b)(6)) (“Plaintiffs must instead sufficiently allege they were impacted by the Ordinances that

affected them disparately from others similarly situated, which Plaintiffs have not alleged”

despite “passing reference to another company”); Gulyas v. Appalachian State Univ., No.

516CV00225RLVDCK, 2017 WL 3710083, at *8 (W.D.N.C. Aug. 28, 2017), reconsideration

denied, No. 516CV00225RLVDCK, 2017 WL 4294109 (W.D.N.C. Sept. 27, 2017) (same)

(noting that plaintiff had failed to identify a similarly situation individual).

Third, there are no factual allegations demonstrating that the treatment of the Plaintiff

was a result of intentional or purposeful discrimination. Doe v. Wake Cty., 826 S.E.2d 815, 820

(N.C. App. 2019) (reasoning that the Olech pleading requirement is similar to that of a plaintiff

attempting to pierce the cloak of public official immunity) (affirming dismissal of equal

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protection claim where no allegation public officials acted with malice or corruption).

Accordingly, Plaintiff has failed to state a claim for relief under the Equal Protection Clause.

VII. COUNT 5 – 42 U.S.C.S. § 1983 – FAILS TO STATE A CLAIM.

To state a claim under § 1983, a plaintiff must allege that he was “deprived of a right

secured by the Constitution or laws of the United States, and that the alleged deprivation was

committed under color of state law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50

(1999). To satisfy the state action requirement, a plaintiff must demonstrate that the conduct at

issue is “fairly attributable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).

Here, because Plaintiff’s underlying claims should be dismissed, the § 1983 claim fails as

a matter of law. See e.g., Burrell v. Virginia, 395 F.3d 508, 513-14 (4th Cir. 2005) (concluding

that a § 1983 complaint failed to state a claim where plaintiff did “not allege any trial action that

violated his Fifth Amendment rights”).

VIII. COUNTS 1 AND 3 SHOULD ALSO BE DISMISSED BECAUSE PLAINTIFF


HAS NOT EXHAUSTED ITS ADMINISTRATIVE REMEDIES.

This Court lacks subject matter jurisdiction over Counts 1 and 3 because Plaintiff has not

exhausted the remedy already available to it under N.C.G.S. § 160A-393 and fails to allege facts

justifying avoidance of the requirement it do so. Justice for Animals, Inc. v. Robeson

County, 164 N.C. App. 366, 369, 595 S.E.2d 773, 775 (2004) (holding that failure to exhaust

administrative remedies subjects complaint to dismissal for lack of subject matter jurisdiction);

Affordable Care, Inc. v. N. Carolina State Bd. of Dental Examiners, 153 N.C. App. 527, 533–34,

571 S.E.2d 52, 58 (2002) (holding that facts justifying avoidance of administrative procedure

must be pled in the complaint).

The North Carolina General Assembly has provided a statutory remedy that allows the

courts to review the decisions of boards of adjustment and determine whether those decisions

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were in violation of constitutional standards or arbitrary or capricious. N.C.G.S. § 160A-

393(k)(1)(a, f). Plaintiff has not alleged any facts to suggest why avoidance of the pending

administrative procedure is justified. Rather, it simply puts forward the conclusory legal

statement that "there is no adequate remedy available to redress Plaintiff's injuries except as set

forth herein." (DE#1-1, p 8 at ¶ 46.) Additionally, Plaintiff has pled that it is availing itself of

that process. (DE #1-1 at ¶ 44.) As a result, Plaintiff has not exhausted its administrative

remedies as required for Counts 1 and 3. Consequently, the Court should dismiss those claims

for failure to state a claim and/or lack of subject matter jurisdiction.

IX. PLAINTIFF’S COMPLAINT SHOULD BE DISMISSED BASED ON


IMMUNITY DOCTRINES.

In the alternative, Plaintiff’s Complaint should be dismissed based on the doctrines of

governmental and sovereign immunity.

X. PLAINTIFF’S COMPLAINT SHOULD BE DISMISSED BASED ON THE


MOOTNESS OR RIPENESS DOCTRINES.

In addition, Plaintiff’s Complaint should be dismissed pursuant to Rule 12(b)(1) based on

the doctrines of mootness and ripeness. “[A] case is moot when the issues presented are no

longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” United States v.

Hardy, 545 F.3d 280, 283 (4th Cir.2008) (quotations and citations omitted). “The requisite

personal interest that must exist at the commencement of the litigation (standing) must continue

throughout its existence (mootness).” Arizonans for Official English v. Arizona, 520 U.S. 43, 68

n. 22 (1997 (internal quotation omitted). Plaintiff’s claims are moot because the purchase

agreement terminated and the Site has changed owners before this lawsuit was filed.

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In the alternative, because Plaintiff is still availing itself of the post-deprivation process in

Lawsuit #1, the claims are not ripe and should be dismissed. Cities4Life, Inc. v. City of

Charlotte, 341 F.Supp. 3d 621, 628 (W.D.N.C. Sept. 18, 2018) (quotation and citations omitted).

XI. PLAINTIFF’S COMPLAINT AGAINST THE BOA SHOULD BE DISMISSED.

Defendant Board of Adjustment is not a legal entity capable of being sued in this context

pursuant to a statute. See DE #1-1 at p 15. McPherson v. First & Citizens Nat. Bank of

Elizabeth City, 240 N.C. 1, 18, 81 S.E.2d 386, 397 (1954) (“[I]n the absence of statute, the

capacity to be sued exists only in persons in being”). Thus, the BOA should be dismissed.

XII. PLAINTIFF’S MOTION FOR A STAY SHOULD BE DENIED.

Count 6 of Plaintiff’s Complaint contains a Motion for a Stay of this Lawsuit pending the

outcome of Plaintiff’s Appeal in Lawsuit #1. Defendants contend the Motion should be denied

because the underlying Complaint must be dismissed for the reasons set out in this

Memorandum. Further, for the reasons stated in Section I, Plaintiff lacks standing to seek this

stay. Defendants reserve the right to respond to the motion in Count 6 if Plaintiff supports it

with a Memorandum of Law as required by the local rules.

CONCLUSION

For the foregoing reasons, Defendants respectfully request the Court grant their Motion

to Dismiss. In the alternative, Defendants request leave to conduct limited discovery as to the

standing, mootness, and ripeness issues.

Respectfully submitted, this the 7th day of June, 2019.

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ROBERTS & STEVENS, P.A.

BY: s/John D. Noor


JOHN D. NOOR
N.C. Bar No.
ANN-PATTON HORNTHAL
N.C. Bar No. 35477
Attorneys for Defendants
P.O. Box 7647
Asheville, NC 28802
(828) 252-6600
jnoor@roberts-stevens.com
aphornthal@roberts-stevens.com

J. Brandon Freeman
N.C. Bar No. 46036
Attorney for Respondent
200 College Street
Asheville, NC 28801
(828) 250-4115
Brandon.Freeman@buncombecounty.org

CERTIFICATE OF SERVICE

This is to certify that the undersigned has this date served the foregoing Memorandum of

Law in Support of Motion to Dismiss upon all parties to this cause by depositing a copy hereof

in a post paid wrapper in a post office or official depository under the exclusive care and custody

of the United States Postal Service, properly addressed to the attorney(s) of record as listed:

Craig D. Justus
The Van Winkle Law Firm
P.O. Box 7676
Asheville, NC 28802
(828) 258-2991
cjustus@vwlawfirm.com
Attorney for the Plaintiff

This the 7th day of June, 2019.

BY: s/John D. Noor


JOHN D. NOOR

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